Exhibit 4.3
REGISTRATION RIGHTS
AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of
June 16, 2021 (this “
Agreement”), is entered into by and among
HP Inc., a Delaware corporation (the “Company”), and
Goldman Sachs & Co. LLC, J.P.
Morgan Securities LLC and
Wells Fargo Securities, LLC, as representatives (the “
Representatives”) of the
initial purchasers set forth on
Schedule II to the
Purchase Agreement (as defined herein) (the “
Initial Purchasers”).
The
Company and the
Representatives are parties to the
Purchase Agreement dated
June 7, 2021 (the “
Purchase Agreement”), which provides for the sale by the
Company to the
Initial Purchasers the aggregate principal amount of each of its securities identified in
Schedule I to the
Purchase Agreement (collectively, the “
Securities”). The
Securities will be issued by the
Company under an indenture (the “
Base Indenture”), dated as of
June 17, 2020, between the
Company and The
Bank of New York Mellon Trust Company, N.A. (the “
Trustee”) as supplemented by the first supplemental indenture, dated as of the date hereof, between the Company and the Trustee (together with the Base Indenture, the “
Indenture”).
As an inducement to the
Initial Purchasers to enter into the
Purchase Agreement, the
Company has agreed to provide for the
Initial Purchasers and their direct and indirect transferees to receive the registration rights set forth in this
Agreement. The execution and delivery of this
Agreement is a condition to the obligations of the
Initial Purchasers set forth in Section 5(i) of the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized defined terms shall have the following meanings: “
Agreement” shall have the meaning set forth in the preamble.
“
Business Day” shall mean any day that is not a
Saturday,
Sunday or other day on which commercial banks in
New York City,
New York are authorized or required by law to remain closed. For purposes of this
Agreement, if the day on which any deadline specified in this
Agreement expires is not a
Business Day, such deadline shall be deemed to expire on the next succeeding
Business Day.
“
Closing Date” shall have the meaning set forth in the
Purchase Agreement.
“
Company” shall have the meaning set forth in the preamble.
“
Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended from time to time.
“
Exchange Dates” shall have the meaning set forth in
Section 2(a)(ii) hereof.
“
Exchange Offer” shall mean the exchange offer of
Exchange Securities for
Registrable Securities pursuant to
Section 2(a) hereof.
“
Exchange Offer Registration” shall mean a registration under the
Securities Act effected pursuant to
Section 2(a) hereof.
“
Exchange Offer Registration Statement” shall mean an
exchange offer registration statement on
Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such
registration statement, in each case including the
Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“
Exchange Securities” shall mean senior unsecured notes issued by the
Company under the
Indenture containing terms identical to the
Registrable Securities (except that such notes will be registered under the
Securities Act and the transfer restrictions,
registration rights and additional
annual interest rate for failure to comply with this
Agreement applicable to the
Registrable Securities will not apply to such notes) and to be offered to
Holders of
Registrable Securities in exchange for
Securities pursuant to the
Exchange Offer.
“
FINRA” shall mean the
Financial Industry Regulatory Authority, Inc.
“
Free Writing Prospectus” shall mean each free writing
prospectus (as defined in
Rule 405 under the
Securities Act) prepared by or on behalf of the
Company or used or referred to by the
Company in connection with the offer and sale of the
Securities or the
Exchange Securities.
“
Holder Notice” shall have the meaning set forth in
Section 2(b) hereof.
“
Holders” shall mean the
Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and indirect transferees who become owners of
Registrable Securities under the
Indenture;
provided that for purposes of
Sections 4 and
6 hereof, the term “
Holders” shall include
Participating Broker-Dealers.
“
Indemnified Person” shall have the meaning set forth in
Section 5(c) hereof.
“
Indemnifying Person” shall have the meaning set forth in
Section 5(c) hereof.
“Indenture” shall have the meaning set forth in the preamble.
“
Initial Purchasers” shall have the meaning set forth in the preamble.
“
Inspector” shall have the meaning set forth in
Section 3(a)(xiv) hereof.
“
Issuer Information” shall have the meaning set forth in
Section 5(a) hereof.
“
Majority Holders” shall mean the
Holders of a majority of the aggregate principal amount of the outstanding
Registrable Securities;
provided that whenever the consent or approval of
Holders of a specified percentage of
Registrable Securities is required hereunder, any
Registrable Securities owned directly or indirectly by the
Company or any of its affiliates shall not be counted in determining whether such consent or approval was given by the
Holders of such required percentage or amount; and
provided,
further, that if the
Company shall issue any additional
Securities under the
Indenture prior to consummation of the
Exchange Offer or, if applicable, the effectiveness of any
Shelf Registration Statement, such additional
Securities and the
Registrable Securities to which this
Agreement relates shall be treated together as one class for purposes of determining whether the consent or approval of
Holders of a specified percentage of
Registrable Securities has been obtained.
“
Participating Broker-Dealers” shall have the meaning set forth in
Section 4(a) hereof.
“
Person” shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.
“
Prospectus” shall mean the prospectus included in, or, pursuant to the rules and regulations of the
Securities Act, deemed a part of, a
Registration Statement, including (i) any preliminary prospectus and (ii) any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a
Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including any document incorporated by reference therein.
“
Purchase Agreement” shall have the meaning set forth in the preamble.
“
Registrable Securities” shall mean the
Securities;
provided that any
Securities shall cease to be
Registrable Securities (i) when a
Registration Statement with respect to such
Securities has become effective under the
Securities Act and the
Securities have been exchanged, disposed of or distributed pursuant to such
Registration Statement, (ii) when such
Securities cease to be outstanding or (iii) when the
Exchange Offer is consummated, except in the case of
Securities that otherwise remain
Registrable Securities that are held by a
Holder that was ineligible to participate in the
Exchange Offer or participated in the
Exchange Offer and did not receive fully tradable
Exchange Securities pursuant to the
Exchange Offer.
“
Registration Expenses” shall mean any and all expenses incident to performance of or compliance by the
Company with this
Agreement, including without limitation: (i) all
SEC, stock exchange or
FINRA registration and filing fees,
(ii) all fees and expenses incurred by the
Company in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of one firm of counsel for any
Underwriters or
Holders in connection with blue sky qualification of any
Exchange Securities or
Registrable Securities, which firm shall be selected by the
Underwriters or
the
Majority Holders), (iii) the costs incident to the preparing, word processing, printing and distributing any
Registration Statement, any
Prospectus, any
Free Writing Prospectus and any amendments or supplements thereto, any underwriting
agreements,
securities sales
agreements or other similar
agreements, and any other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the qualification of the
Indenture under applicable
securities laws, (vi) the reasonable fees and disbursements of the
Trustee, (vii) the reasonable fees and disbursements of counsel for the
Company and, in the case of a
Shelf Registration Statement, the reasonable fees (not to exceed $50,000) and disbursements of one counsel for the
Holders (which counsel shall be
Cravath, Swaine & Moore LLP) and (viii) the fees and disbursements of the independent public accountants of the
Company, including the expenses of any “comfort” letters required by or incident to the performance of and compliance with this
Agreement, but excluding any or all fees and expenses of advisors or counsel to any
Underwriters (other than fees and expenses set forth in
clause (ii) above) or the
Holders, any underwriting discounts and commissions, and any brokerage commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a
Holder.
“
Registration Statement” shall mean any registration statement that covers any of the
Exchange Securities or
Registrable Securities pursuant to the provisions of this
Agreement and all amendments and supplements to any such registration statement, including post-effective amendments, in each case including the
Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“
Representatives” shall have the meaning set forth in the preamble.
“
SEC” shall mean the
United States Securities and Exchange Commission.
“
Securities” shall have the meaning set forth in the preamble.
“
Securities Act” shall mean the
Securities Act of 1933, as amended from time to time.
“
Shelf Additional Interest Date” shall have the meaning set forth in
Section 2(d) hereof.
“
Shelf Effectiveness Period” shall have the meaning set forth in
Section 2(b) hereof.
“
Shelf Registration” shall mean a registration effected pursuant to
Section 2(b) hereof.
“
Shelf Registration Statement” shall mean a “shelf”
registration statement that covers all or a portion of the
Registrable Securities (but no other
securities unless approved by a majority of the
Holders whose
Registrable Securities are to be covered by such
Shelf Registration Statement) on an appropriate form under
Rule 415 under the
Securities Act, or any similar rule that may be adopted by the
SEC, and all amendments
and supplements to such
registration statement, including post-effective amendments, in each case including the
Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“
Shelf Request” shall have the meaning set forth in
Section 2(b) hereof.
“
Staff” shall mean the staff of the
SEC.
“
Target Registration Date” shall mean the date which is
366 days from the
Closing Date.
“
Trigger Date” shall have the meaning set forth in
Section 2(d) hereof.
“
Trust Indenture Act” shall mean the
Trust Indenture Act of 1939, as amended from time to time.
“Trustee” shall have the meaning set forth in the preamble.
“
Underwriter” shall have the meaning set forth in
Section 3(e) hereof.
“
Underwritten Offering” shall mean an offering in which
Registrable Securities are sold to an
Underwriter for reoffering to the public.
2. Registration under the Securities Act.
(a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Company shall use commercially reasonable efforts to (x) file an Exchange Offer Registration Statement covering an offer to the Holders to exchange all outstanding Registrable Securities for Exchange Securities and (y) keep such Registration Statement effective until 180 days after the date the Exchange Offer Registration Statement became effective for use by one or more Participating Broker-Dealers. The Company shall commence the Exchange Offer as promptly as reasonably practicable after the Exchange Offer Registration Statement is declared effective by the SEC and use commercially reasonable efforts to complete the Exchange Offer no later than the Target Registration Date.
The
Company shall commence the
Exchange Offer by mailing or making available the related
Prospectus, appropriate letters of transmittal and other accompanying documents to each
Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange, except to the extent not permitted by law, applicable interpretations of the Staff or as otherwise contemplated in this Agreement;
(ii) the dates of acceptance for exchange (which shall be a period of at least
20
Business Days (in accordance with the
Exchange Act) from the date such notice is mailed or made available) (the “
Exchange Dates”);
(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by effecting such withdrawal in compliance with the applicable procedures of the institution as shall be set forth in the letter(s) of transmittal and in compliance with the applicable procedures of the depositary for the Registrable Securities.
As a condition to participating in the
Exchange Offer, a
Holder will be required to represent to the
Company that (I) any
Exchange Securities to be received by it will be acquired in the ordinary course of its business, (II) at the time of the commencement of the
Exchange Offer it is not engaged in, and does not intend to engage in, and it has no arrangement or understanding with any
Person to participate in, the distribution (within the meaning of the
Securities Act) of the
Exchange Securities in violation of the
Securities Act, (III) it is not an “affiliate” (as defined in
Rule 405 under the
Securities Act) of the
Company or, if it is such an “affiliate,” such
Holder will comply with the
prospectus delivery requirements of the
Securities Act to the extent applicable in connection with any resale of the
Exchange Securities and (IV) if such
Holder is a broker-dealer that will receive
Exchange Securities for its own account in exchange for
Registrable Securities that were acquired as a result of market making or other trading activities, then such
Holder will comply with the
prospectus delivery requirements of the
Securities Act, to the extent applicable, in connection with any resale of the
Exchange Securities. Each
Holder hereby acknowledges and agrees that any broker-dealer and any such
Holder using the
Exchange Offer to participate in a distribution of the
securities to be acquired in the
Exchange Offer (1) could not under
SEC policy as in effect on the date of this
Agreement rely on the position of the
SEC enunciated in
Morgan Stanley and Co., Inc. (available
June 5, 1991) and
Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the
SEC’s letter to
Shearman & Sterling dated
July 2, 1993, and similar no-action letters, and (2) must comply with the registration and
prospectus delivery requirements of the
Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should be covered by an effective
registration statement containing the selling
security
holder information required by
Item 507 or 508, as applicable, of Regulation S-K if the resales are of
Exchange Securities
obtained by such
Holder in exchange for
Registrable Securities acquired by such
Holder directly from the
Company.
As soon as practicable after the last
Exchange Date, the
Company shall:
(i) cause the
Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the
Exchange Offer to be accepted for exchange;
(ii) cause all
Registrable Securities or portions thereof so accepted for exchange to be delivered to the
Trustee for cancellation;
(iii) issue
Exchange Securities equal in principal amount to the principal amount of the
Registrable Securities validly tendered by such
Holder; and
(iv) cause the
Trustee to promptly authenticate and deliver to each
Holder such
Exchange Securities.
The
Company shall use commercially reasonable efforts to complete the
Exchange Offer as provided above and shall comply with the applicable requirements of the
Securities Act, the
Exchange Act and other applicable laws and regulations in connection with the
Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations of the
Staff and customary conditions relating to the delivery of
Securities or other actions customarily taken by
Holders participating in the
Exchange Offer or the execution and delivery of customary documentation relating to the
Exchange Offer.
(b) In the event that (i) the Company determines that the Exchange Offer Registration provided for in Section 2(a) hereof is not available or may not be completed as soon as reasonably practicable after the last Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) a Holder participating in the Exchange Offer does not receive Exchange Securities on the date of the exchange that may be sold without restriction under state and U.S. federal securities laws (other than due solely to the status of such Holder as an affiliate of the Company within the meaning of the Securities Act) and notifies (a “Holder Notice”) the Company within 30 days after such Holder first becomes aware of such restrictions, (iii) the Exchange Offer, for any other reason, is not completed by the Target Registration Date or (iv) the Company receives a written request (a “Shelf Request”) from any Initial Purchaser representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company shall use commercially reasonable efforts to file, as soon as practicable after the date of such determination, Holder Notice or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective.
In the event that the
Company is required to file a
Shelf Registration Statement pursuant to
clause (iii) or
(iv) of the preceding sentence, the
Company shall use
commercially reasonable efforts to file and to cause to become effective both an
Exchange Offer Registration Statement pursuant to
Section 2(a) hereof with respect to all
Registrable Securities and a
Shelf Registration Statement (which may be a combined
Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales of
Registrable Securities held by the
Initial Purchasers, if any, after completion of the
Exchange Offer.
The
Company agrees to use commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective for a period of
one year from the effective date of such
Shelf Registration Statement or such shorter period that will terminate when all of the
Securities covered by the
Shelf Registration Statement cease to be
Registrable Securities (the “
Shelf Effectiveness Period”). The
Company further agrees to supplement or amend the
Shelf Registration Statement, the related
Prospectus and any
Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the
Company for such
Shelf Registration Statement or by the
Securities Act or by any other rules and regulations thereunder or if reasonably requested by a
Holder of
Registrable Securities with respect to information relating to such
Holder, and to use commercially reasonable efforts to cause any such amendment to become effective, if required, and such
Shelf Registration Statement,
Prospectus or
Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The
Company agrees to furnish to the
Holders of
Registrable Securities registered on such
Shelf Registration Statement copies of any such supplement or amendment promptly after its being used or filed with the
SEC.
(c) The Company shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to any Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act.
In the event that either the
Exchange Offer is not completed by the
Target Registration Date or the
Shelf Registration Statement, if required pursuant to
Sections 2(b)(i) or
2(b)(iii) hereof, is not effective by the
Target Registration Date, the interest rate on the
Registrable Securities will be increased by (i)
0.25%
per annum for the first
90-day period immediately following such date and (ii) an additional
0.25%
per annum with respect to each subsequent
90-day period, in each case until the
Exchange Offer is completed or the
Shelf Registration Statement, if required hereby, becomes effective, up to a maximum total increase of
0.50%
per annum. In the event that the
Company receives a
Holder Notice or
Shelf Request pursuant to
Sections 2(b)(ii) or
2(b)(iv) hereof, and the
Shelf Registration Statement required to be filed thereby has not become
effective by the later of (x) the
Target Registration Date or (y)
90 days after delivery of such
Holder Notice or
Shelf Request (such later date, the “
Shelf Additional Interest Date”), then the interest rate on the
Registrable Securities will be increased by (i)
0.25%
per annum for the first
90-day period payable commencing from
one day after the
Shelf Additional Interest Date and (ii) an additional
0.25%
per annum with respect to each subsequent
90-day period, in each case until the
Shelf Registration Statement becomes effective, up to a maximum total increase of
0.50%
per annum.
If the
Shelf Registration Statement, if required hereby, is effective and thereafter either ceases to be effective or the
Prospectus contained therein ceases to be usable, in each case whether or not permitted by this
Agreement, at any time during the
Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than
60 days (whether or not consecutive) in any
12-month period (the 60th such date, the “
Trigger Date”), then the interest rate on the
Registrable Securities will be increased by (i)
0.25%
per annum for the first
90-day period immediately following the
Trigger Date and (ii) an additional
0.25%
per annum with respect to each subsequent
90-day period, up to a maximum increase of
0.50%
per annum, and ending on such date that the
Shelf Registration Statement is again effective or the
Prospectus again becomes usable.
Any additional interest payable by the
Company due to the increases in
annual interest rate described in this
Agreement will be paid in accordance with and pursuant to the terms of the
Indenture. The additional interest referenced in this
Section 2(d) shall be the sole remedy of any
Holder (other than a
Participating Broker-Dealer) with respect to any
Exchange Offer Registration and
Shelf Registration and related matters provided for in this
Agreement.
3. Registration Procedures.
(a) In connection with its obligations pursuant to
Section 2(a) and
Section 2(b) hereof, the
Company shall as soon as reasonably practicable:
(i) prepare and file with the
SEC a
Registration Statement on the appropriate form under the
Securities Act, which form (x) shall be selected by the
Company, (y) shall, in the case of a
Shelf Registration, be available for the sale of the
Registrable Securities by the
Holders thereof and (z) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the
SEC to be filed therewith; and use commercially reasonable efforts to cause such
Registration Statement to become effective and remain effective for the applicable period in accordance with
Section 2 hereof;
(ii) prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period in accordance with Section 2 hereof and supplement each Prospectus with any required prospectus supplement and, as so supplemented, to file such Prospectus pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the period
described in
Section 4(3) of, and
Rule 174 under, the
Securities Act that is applicable to transactions by brokers or dealers with respect to the
Registrable Securities or
Exchange Securities;
(iii) to the extent any
Free Writing Prospectus is used, file with the
SEC any
Free Writing Prospectus that is required to be filed by the
Company with the
SEC in accordance with the
Securities Act and the retention of any
Free Writing Prospectus not required to be filed to the extent required by
SEC rules;
(iv) in the case of a
Shelf Registration, use commercially reasonable efforts upon written request, to furnish to each
Holder of
Registrable Securities included on such
Shelf Registration Statement, to counsel for the
Initial Purchasers, to counsel for such
Holders and to each
Underwriter of an
Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, preliminary
prospectus or
Free Writing Prospectus, and any amendment or supplement thereto, as such
Holder, counsel or
Underwriter may reasonably request in writing in order to facilitate the sale or other disposition of the
Registrable Securities thereunder; and the
Company consents to the use of such
Prospectus, preliminary
prospectus or such
Free Writing Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the
Holders of
Registrable Securities and any such
Underwriters in connection with the offering and sale of the
Registrable Securities covered by and in the manner described in such
Prospectus, preliminary
prospectus or such
Free Writing Prospectus or any amendment or supplement thereto in accordance with applicable law;
(v) in the case of an Exchange Offer Registration Statement, use commercially reasonable efforts to cause the registration and qualification of the Registrable Securities under all applicable state securities or blue sky laws, if and to the extent legally required in order to effect the Exchange Offer, and, in the case of a Shelf Registration Statement and if necessary to permit sales under the Shelf Registration Statement, cooperate with the selling Holders and its counsel to register or qualify the Registrable Securities under the applicable state securities or blue sky laws of such jurisdictions as any Holder of Registrable Securities covered by such Shelf Registration Statement shall reasonably request in writing by the time the applicable Shelf Registration Statement becomes effective; cooperate with such Holders in connection with any filings required to be made with FINRA; and use commercially reasonable efforts to cause any and all other acts and things that may be reasonably necessary or advisable to enable each Holder to complete the disposition in each such jurisdiction of the Registrable Securities owned by such Holder; provided that the Company shall not be required to (1) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (2) file any general consent to subject itself to service of process in any such jurisdiction or (3) subject itself to taxation in any such jurisdiction if it is not so subject;
(vi) notify counsel for the
Initial Purchasers and, in the case of a
Shelf Registration, notify each
Holder of
Registrable Securities included on such
Shelf Registration Statement and counsel for such
Holders as promptly as reasonably practicable and, if requested by any such
Holder or counsel, confirm such advice in writing (1) when a
Registration Statement has become effective, when any post-effective amendment thereto has been filed and becomes effective, when any
Free Writing Prospectus has been filed or any amendment or supplement to the
Prospectus or any
Free Writing Prospectus has been filed, (2) of any request by the
SEC or any state
securities authority for amendments and supplements to a
Registration Statement,
Prospectus or any
Free Writing Prospectus or for additional information after the
Registration Statement has become effective,
(3) of the issuance by the
SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose, including the receipt by the
Company of any notice of objection of the
SEC to the use of a
Shelf Registration Statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the
Securities Act, (4) if, between the applicable effective date of a
Shelf Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the
Company receives any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose,
(5) of the happening of any event during the period a
Registration Statement is effective that makes any statement made in such
Registration Statement or the related
Prospectus or any
Free Writing Prospectus or any amendment or supplement thereto untrue in any material respect or that requires the making of any changes in such
Registration Statement or
Prospectus or any
Free Writing Prospectus in order to make the statements therein not misleading (in the case of the
Prospectus, in light of the circumstances under which they were made) and (6) of any determination by the
Company that a post-effective amendment to a
Registration Statement or any amendment or supplement to the
Prospectus or any
Free Writing Prospectus would be required;
(vii) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement, or, in the case of a
Shelf Registration, the resolution of any objection of the
SEC pursuant to
Rule 401(g)(2) under the
Securities Act, including by filing an amendment to such
Shelf Registration Statement on the proper form, as promptly as reasonably practicable and provide prompt notice to each
Holder of the withdrawal of any such order or such resolution;
(viii) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities included on such Shelf Registration Statement, without charge, upon written request, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (without any documents incorporated therein by reference or exhibits thereto, unless requested in writing), if such documents are not available via EDGAR;
(ix) in the case of a
Shelf Registration, reasonably cooperate with the
Holders of
Registrable Securities included on such
Shelf Registration Statement to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends and enable such
Registrable Securities to be issued in such denominations and, in the case of certificated
securities, registered in such names (consistent with the provisions of the
Indenture) as such
Holders may reasonably request at least
three
Business Days prior to the closing of any sale of
Registrable Securities;
(x) upon the occurrence of any event contemplated by
Section 3(a)(vi)(5) hereof, use commercially reasonable efforts to prepare and file with the
SEC a supplement or post-effective amendment to such
Registration Statement or the related
Prospectus or any
Free Writing Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered (or, to the extent permitted by law, made available) to purchasers of the
Registrable Securities, such
Prospectus or
Free Writing Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the
Company shall notify the
Holders of
Registrable Securities and the
Initial Purchasers, as applicable, to suspend use of the
Prospectus or any
Free Writing Prospectus as promptly as reasonably practicable after the occurrence of such an event, and such
Holders and
Initial Purchasers, as applicable, hereby agree to suspend use of the
Prospectus or any
Free Writing Prospectus, as the case may be, until the
Company has amended or supplemented the
Prospectus or the
Free Writing Prospectus, as the case may be, to correct such misstatement or omission;
(xi) within a reasonable time prior to the filing of any Registration Statement, any Prospectus, any Free Writing Prospectus, or any amendment of or supplement to a Registration Statement, a Prospectus or a Free Writing Prospectus, in each case, excluding any document that is to be incorporated by reference into such Registration Statement, Prospectus, Free Writing Prospectus or any amendment or supplement thereto after the initial filing of a Registration Statement, provide copies of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, to the Holders of Registrable Securities included on such Shelf Registration Statement and their counsel) and make representatives of the Company, as shall be reasonably requested by the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Holders of Registrable Securities included on such Shelf Registration Statement or their counsel), available for discussion of such document; and the Company shall not, at any time after initial filing of a Registration Statement, use or file any Prospectus, any Free Writing Prospectus, any amendment of or supplement to a Registration Statement, a Prospectus or a Free Writing Prospectus, or any document that is to be incorporated by reference into a Registration Statement, a Prospectus or a Free Writing Prospectus, of which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Holders of Registrable Securities and their counsel) shall not have
previously been advised and furnished a copy or to which the
Initial Purchasers or their counsel (and, in the case of a
Shelf Registration Statement, the
Holders of
Registrable Securities or their counsel) shall have previously reasonably objected in writing within
five
Business Days after receipt thereof, unless the
Company in good faith reasonably believes such
Prospectus, amendment or supplement to a
Prospectus is required by applicable law;
(xii) use commercially reasonable efforts to obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case may be, not later than the initial effective date of a Registration Statement;
(xiii) cause the Indenture to be qualified under the Trust Indenture Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be; reasonably cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute, and use commercially reasonable efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner;
(xiv) in the case of a
Shelf Registration, make available for inspection, solely for due diligence purposes to the extent appropriate, by a
representative of the
Holders of the
Registrable Securities (an “
Inspector”), any
Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, one firm of counsel and one firm of accountants designated by a majority of the
Holders of
Registrable Securities to be included in such
Shelf Registration and any attorneys and accountants designated by such
Underwriter, at reasonable times and in a reasonable manner, such financial and other records, pertinent documents and access to properties of the
Company and its subsidiaries as such
Persons may reasonably request, and cause the officers, directors and employees of the
Company to supply all such information and access reasonably requested by any such
Inspector,
Underwriter, attorney or accountant in connection with a
Shelf Registration Statement;
provided that each
Person receiving such information shall take such actions as are reasonably necessary to protect the confidentiality of such information (including, without limitation, entering into a confidentiality
agreement in customary form if requested by the
Company);
(xv) if reasonably requested by any Holder of Registrable Securities covered by a Shelf Registration Statement, promptly include in a Prospectus supplement or post-effective amendment such information with respect to such Holder as such Holder reasonably concludes is required to be included therein and make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received notification of the matters to be so included in such filing;
(xvi) in the case of a Shelf Registration, enter into such customary agreements and take all such other actions in connection therewith (including those reasonably requested by the Holders of a majority in principal amount of the Registrable Securities covered by the Shelf Registration Statement) in order to expedite or facilitate the disposition of such Registrable Securities including, but not limited to, in an Underwritten Offering and in such connection, (1) to the extent possible, make such representations and warranties to the Holders and any Underwriters of such Registrable Securities with respect to the business of the Company and its subsidiaries and the Registration Statement, Prospectus, any Free Writing Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when required by the applicable underwriting agreement or requested by the Holder, as applicable, (2) solely with respect to an Underwritten Offering, obtain opinions of counsel to the Company (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Holders of a majority in principal amount of the Registrable Securities being sold and such Underwriters and their respective counsel) addressed to each selling Holder and Underwriter of such Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings, (3) solely with respect to an Underwritten Offering, obtain “comfort” letters from the independent certified public accountants of the Company (and, if necessary, any other certified public accountant of any subsidiary of the Company, or of any business acquired by the Company for which financial statements and financial data are or are required to be included in the Registration Statement) addressed to each selling Holder (to the extent permitted by applicable professional standards) and Underwriter of such Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, including but not limited to financial information contained in any preliminary prospectus, Prospectus or Free Writing Prospectus, and (4) deliver such documents and certificates as may be reasonably requested by the Holders of a majority in principal amount of the Registrable Securities being sold or the Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties of the Company made pursuant to clause (1) above and to evidence compliance with any customary conditions contained in an underwriting agreement; it being agreed that the representations and warranties, opinions of counsel and comfort letters delivered in connection with the initial offering of the Securities are customary; and
(b) In the case of a Shelf Registration Statement, the Company may require each Holder of Registrable Securities to furnish to the Company such information regarding such Holder and the proposed disposition by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing; provided that if such Holder fails to provide the requested information within 15 Business Days, the Company may exclude such Holder’s Registrable Securities from such Shelf Registration Statement until such time as the information is provided.
(c) In the case of a
Shelf Registration Statement, each
Holder of
Registrable Securities covered in such
Shelf Registration Statement agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in
Sections 3(a)(vi)(3) or
3(a)(vi)(5) hereof, such
Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the
Shelf Registration Statement until such
Holder’s receipt of the copies of the supplemented or amended
Prospectus and any
Free Writing Prospectus contemplated by
Section 3(a)(x) hereof and, if so directed by the
Company, such
Holder will deliver to the
Company (at its expense) all copies in its possession, other than permanent file copies then in such
Holder’s possession, of the
Prospectus and any
Free Writing Prospectus covering such
Registrable Securities that is current at the time of receipt of such notice.
(d) If the
Company shall give any notice to suspend the disposition of
Registrable Securities pursuant to a
Registration Statement, the
Company shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the
Holders of such
Registrable Securities shall have received copies of the supplemented or amended
Prospectus or any
Free Writing Prospectus necessary to resume such dispositions. The
Company may give any such notice only twice during any
365-day period, any such suspensions shall not exceed
60 days for each suspension and there shall not be more than two suspensions in effect during any
365-day period.
(e) The
Holders of
Registrable Securities covered by a
Shelf Registration Statement who desire to do so may sell such
Registrable Securities in an
Underwritten Offering. In any such
Underwritten Offering, the investment bank or investment banks and manager or managers (each an “
Underwriter”) that will administer the offering will be selected by the
Company (provided the lead
Underwriter shall also be reasonably acceptable to
Holders of a majority in principal amount of the
Registrable Securities included in such offering). However, in the event of an
Underwritten Offering, each
Holder agrees that, neither such
Holder nor any
Underwriter participating in any disposition pursuant to any
Registration Statement on such
Holder’s behalf, will make any offer relating to the
Registrable Securities that would constitute an
Issuer
Free Writing Prospectus (as defined in
Rule 433 under the
Securities Act) or that would otherwise constitute a “
free writing prospectus” (as defined in
Rule 405 under the
Securities Act) required to be filed by the
Company with the
SEC or retained by the
Company under
Rule 433 of the
Securities Act, unless it has obtained the prior written consent of the
Company.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Company has been advised that the Staff has taken the position that any broker-dealer that receives Exchange Securities for its own account in the Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of market-making or other trading activities (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver
a
prospectus meeting the requirements of the
Securities Act in connection with any resale of such
Exchange Securities.
The
Company has been advised that it is the
Staff’s position that if the
Prospectus contained in the
Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the
Exchange Securities, without naming the
Participating Broker-Dealers or specifying the amount of
Exchange Securities owned by them, such
Prospectus may be delivered by
Participating Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their
prospectus delivery obligation under the
Securities Act in connection with resales of
Exchange Securities for their own accounts, so long as the
Prospectus otherwise meets the requirements of the
Securities Act.
(b) In light of the above, and notwithstanding the other provisions of this
Agreement, the
Company agrees, if so requested by one or more
Holders who is a
Participating Broker-Dealer, to use commercially reasonable efforts to amend or supplement the
Prospectus contained in the
Exchange Offer Registration Statement for a period ending on the earlier of (i)
180 days after the date the
Exchange Offer Registration Statement becomes effective (as such period may be extended pursuant to
Section 3(d) hereof) and (ii) the date on which each
Participating Broker-Dealer is no longer required to deliver a
prospectus in connection with market making or other trading activities, in each case to the extent necessary to ensure that the
Exchange Offer Registration Statement is available for resale of the
Registrable Securities acquired by the
Participating Broker-Dealers. The
Company further consents to the delivery of (or, to the extent permitted by law, agree to make available) such
Prospectus by
Participating Broker-Dealers during such period in connection with the resales contemplated by this
Section 4.
(c) The Initial Purchasers shall have no liability to the Company or any Holder with respect to any request that a Holder may make pursuant to Section 4(b) hereof.
5. Indemnification and Contribution.
(a) The
Company agrees to indemnify and hold harmless each
Initial Purchaser, each
Holder, their respective affiliates, agents, directors and officers and each
Person, if any, who controls any
Initial Purchaser or any
Holder within the meaning of either the
Securities Act or the
Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (1) any untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (2) any untrue statement or alleged untrue statement of a material fact contained in any
Prospectus, or in any amendment thereof or any supplement thereto, any
Free Writing Prospectus or any “issuer information” (“
Issuer
Information”) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Initial Purchaser or information relating to any Holder furnished to the Company in writing by or on behalf of such parties expressly for use therein. In connection with any Underwritten Offering permitted by Section 3 hereof, the Company agrees to also indemnify the Underwriters, if any, their respective affiliates and each Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as provided above with respect to the indemnification of the Holders, if requested in connection with any Registration Statement, any Prospectus, any Free Writing Prospectus or any Issuer Information.
(b) Each
Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company and its affiliates, directors and officers, and the
Initial Purchasers and the other selling
Holders and each
Person, if any, who controls the
Company, any
Initial Purchaser and any other selling
Holder within the meaning of either the
Securities Act or the
Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities (including without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred) that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such
Holder furnished to the
Company in writing by or on behalf of such
Holder expressly for use in any
Registration Statement, any
Prospectus or any
Free Writing Prospectus.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any
Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or
(b) above, such
Person (the “
Indemnified Person”) shall promptly notify the
Person against whom such indemnification may be sought (the “
Indemnifying Person”) in writing;
provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have under
paragraph (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and
provided,
further, that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under
paragraph (a) or
(b). If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the
Indemnifying Person thereof, the
Indemnifying Person shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this
Section 5 that the
Indemnifying Person may designate in such proceeding and shall pay the reasonable fees and expenses of such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the
Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such reasonable fees and expenses shall be reimbursed as they are incurred. Any such separate firm (x) for any
Initial Purchaser or its affiliates, directors and officers and any control
Persons of such
Initial Purchaser shall be designated in writing by such
Initial Purchasers, (y) for any
Holder, its directors and officers and any control
Persons of such
Holder shall be designated in writing by the
Majority Holders and (z) in all other cases shall be designated in writing by the
Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such settlement or judgment. No
Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to or any admission of fault, culpability or failure to act by or on behalf of any
Indemnified Person.
(d) If the indemnification provided for in
paragraphs (a) or
(b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities
(i) in such proportion as is appropriate to reflect the relative benefits received by the
Company from the offering of the
Securities and the
Exchange Securities, on the one hand, and by the
Holders from receiving
Securities or
Exchange Securities registered under the
Securities Act, on the other hand, or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the
Company, on the one hand, and the
Holders, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the
Company, on the one hand, and the
Holders, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information supplied by the
Company or by the
Holders, as applicable, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall a Holder be required to contribute any amount in excess of the amount by which the total price at which the Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations to contribute pursuant to this Section 5 are several and not joint.
(f) The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person controlling any Initial Purchaser or any Holder, or by or on behalf of the Company or the officers or directors of or any Person controlling the Company, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.
(a) No Inconsistent Agreements. The Company represents, warrants and agrees that (i) the rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of any other outstanding securities issued or guaranteed by the Company under any other agreement and (ii) the Company has not entered into, and on or after the date of this Agreement, will not enter into, any agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the
Company has obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement, waiver or consent;
provided that no amendment, modification, supplement, waiver or consent to any departure from the provisions of
Section 6 hereof shall be effective as against any
Holder of
Registrable Securities unless consented to in writing by such
Holder. Any amendments, modifications, supplements, waivers or consents pursuant to this
Section 6(b) shall be in writing and signed by the parties hereto.
(c) Notices. Except as otherwise specified herein, all notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, email or any courier guaranteeing overnight delivery (i) if to a
Holder, at the most current address given by such
Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the
Initial Purchasers, the address set forth in the
Purchase Agreement; (ii) if to the
Company, initially at the
Company’s address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this
Section 6(c); and (iii) if to such other persons, at their respective addresses as provided in the
Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this
Section 6(c). All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered;
five
Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if emailed; and on the
next
Business Day if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the
Person giving the same to the
Trustee, at the address specified in the
Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as Initial Purchasers) shall have no liability or obligation to the Company with respect to any failure by a Holder to comply with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement.
(e) Third-Party Beneficiaries. Each Holder shall be a third-party beneficiary to the agreements made hereunder between the Company, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other
Holders hereunder.
(f) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
(g) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
(h) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York.
(i) Entire Agreement; Severability. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The Company and the Initial Purchasers shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of such invalid, void or unenforceable provisions.
(j) Delegation by the Company. All references to obligations of the Company to take or not take any actions shall be satisfied so long as the Company causes such actions to be taken or not taken, as applicable.
[Signatures on following pages]
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
| | |
| | |
| | By: | /s/ Zachary J. Nesper |
| | Name: | Zachary J. Nesper |
| | Title: | Treasurer |
[Signature Page to the Registration Rights Agreement]
The foregoing
Agreement is hereby confirmed and accepted as of the date first above written.
J.P.
Morgan Securities LLC
| By: | /s/ Stephen L. Sheiner | |
Wells Fargo Securities, LLC
For themselves and the other several
Initial Purchasers, if any, named in
Schedule II to the
Purchase Agreement.
[Signature Page to the Registration Rights Agreement]
